Thursday, April 29, 2010

Ukraine's President Viktor Yanukovych has accepted Syuzanna Stanik's resignation from the Constitutional Court one day following her reappointment. The reasons and details of Stanik's decision to resign have not been made
public. Her resignation avoid the messy need to cancel or reorganise the Courts membership which was over quota as a result of Stanik's reappointment. The questions surrounding Yushchenko's allegation still remain unanswered If Stanik has a case to answer then she should face prosecution, if on the other hand she is innocent then Yushchenko should be held account for his actions back in 2007 when he summarily dismissed three Constitutional Court Judges in order to prevent the court from ruling against his decree dismissing Ukraine's previous Parliament. the truth of this matter may never be known.

Ms Stanik along with two other judges were summarily dismissed by Ukraine's former President, Viktor Yushchenko, in May 2007. The actions of Yushchenko were designed to prevent the Constitutional Court from ruling against his decree of April 2, 2007 dismissing Ukraine's previous Parliament.

Yushchenko's dismissal of the three Judges was in direct breach of Ukraine's Constitution in that by dismissing the three judges Yushchenko had interfered with the independence of Ukraine's Judiciary.

Viktor Yushchenko as President had no authority to dismiss members of the
Constitutional Court.

Yushchenko speciously alleged at the time that the judges were dismissed for a
breach of oath. In doing so Yushchenko denied all three the right of natural justice and their right to face the allegations made against them though a proper judicial process

Two of the judges dismissed later resigned under pressure and Susan Stanik stood her ground and challenged the President's actions in Ukraine's Administrative court of Appeal winning her appeal.

Vikor Yushchenko was ordered
by the administrative court of appeal to reinstate Susan Stanik as the
Court found that Yushchenko''s actions were illegal. Yushchenko
responded by extraordinarily rescinding the decree made by Ukraine's former President, Leonid Kuchma, that originally
appointed Susan Stanik as a Constitutional Judge. An act that in itself
was highly questionable and demonstrated absolute contempt undermining
public confidence in the Judicial process.

Under Ukraine's constitution the President holds absolute immunity
against prosecution and the only means of impeachment is with tech
support of 300 or more members of Ukraine's parliamentary assembly.

Any allegation of misconduct and breach of oath of a Judge should have
been first considered by the Council of Justice, who on finding that
their existed a case to be answered, would then recommend the dismissal
and prosecution of a Judge. The Parliament would then need to consent
to the matter being brought to trial.

Viktor Yushchenko, as President and Guardian of Ukraine's Constitution,
breached his oath by failing to uphold this very important
Constitutional provision and division of powers between the executive and the judiciary. The Constitutional Court never ruled on the question of
constitutionality of Yushchenko's actions.

In any western democracy the president would have been facing
impeachment for such actions.

The authority of the President to dismiss Ukraine's parliament was
challenged in Ukraine's Constitutional Court amidst concern that the
President's actions were unconstitutional in that he has exceeded his
authority to dismiss Ukraine's parliament. Yushchenko's actions had caused seven months of political and civil unrest.

On April 19, 2007 the Parliamentary Assembly of the Council of Europe
passed a resolution in consideration of a report titled Functioning of
democratic institutions in Ukraine. (Items 13 and 14) stated:

“ The Assembly deplores the fact that the judicial system of Ukraine has
been systematically misused by other branches of power and that top
officials do not execute the courts’ decisions, which is a sign of
erosion of this crucial democratic institution. An independent and
impartial judiciary is a precondition for the existence of a democratic
society governed by the rule of law. Hence the urgent necessity to carry
out comprehensive judicial reform, including through amendments to the
constitution.

The Assembly reiterates that the authority of the sole body responsible
for constitutional justice – the Constitutional Court of Ukraine –
should be guaranteed and respected. Any form of pressure on the judges
is intolerable and should be investigated and criminally prosecuted. On
the other hand, it is regrettable that in the eight months of its new
full composition, the Constitutional Court has failed to produce
judgments, thus failing to fulfil its constitutional role and to
contribute to resolving the crisis in its earlier stages, which
undermines the credibility of the court.

There is an urgent need for all pending judgments, and in particular the
judgment concerning the constitutionality of the Presidential Decree of
2 April 2007, to be delivered. If delivered, the latter should be
accepted as binding by all sides. ”

The associated explanatory report under the sub-heading of Pressure on
the courts expressed concern that "Several local courts have made
decisions to suspend the Presidential Decree only to then withdraw them,
allegedly under pressure from the presidential secretariat." (item 67)

In emphasis the report (item 68) stated

"This is a worrying tendency of legal nihilism that should not be
tolerated. It is as clear as day that in a state governed by the rule of
law judicial mistakes should be corrected through appeal procedures and
not through threats or disciplinary sanctions ”

Tuesday, April 13, 2010

The latest Public Opinion pollconducted by Kyiv International Institute of
Sociology (KIIS) lists Ukraine's former President, Viktor Yushchenko, with less then 1.6% support. If fresh parliamentary elections were held Yushchenko's Our Ukraine would lose representation in Ukraine's parliament.

If the results of the poll were translated into parliamentary seats only five parties representing 64.7% of the electorate would cross the 3% representation threshold. - Party of Regions would win an absolute majority with 253 seats and a constitutional majority (>300) with the support of Sergei Tigipko's Strong Ukraine.

Yulia Tymoshenko would win only 95 seats, Arsenyi Yatsenyuk 30 and the Communist Party of Ukraine 21 seats.

Monday, April 12, 2010

Yanukovych’s revenge:

Largely unnoticed in the West, Ukraine’s new president, Viktor
Yanukovych, brought to power an illegitimate government in March. Though
being installed via a seemingly orderly parliamentary procedure, the
current Ukrainian cabinet headed by Prime Minister Mykola Azarov has no
proper popular mandate. How did that come about?

Ukraine has a proportional electoral system with closed lists.
This means that voters do not elect individual candidates, but can only
approve of pre-determined lists presented to them by various political
parties or blocs. The members of the Ukrainian parliament, the Verkhovna
Rada, become deputies only in so far as they are included in their
bloc’s or party’s lists the composition of which is beyond the reach of
voters. The electoral success and resulting faction size of parties or
blocs in parliament is thus mainly determined by the attractiveness of
their ideologies, and charisma of their speakers.

Individual party list members play little role in Ukrainian
parliamentary elections, which are contests between large political
camps and their more or less magnetic leaders. This is in contrast to
majoritarian or mixed electoral systems where the local standing of
regional – and not only national – political leaders plays a prominent
role in determining the makeup of the national legislature.

For better or worse, Ukraine has abandoned first its early post-Soviet
majoritarian and later its mixed electoral systems. It now conducts
(except for a 3 percent barrier) purely proportional parliamentary
elections in which individual list members, other than a small circle of
nationally known party leaders, play little role during the electoral
campaigns. Accordingly, Ukraine’s Constitution ascribes to parliament’s
factions, and not to members of parliament, a decisive role in the
formation of a governmental coalition. A government has to be based on
the support of registered parliamentary groups, and cannot be voted into
office by individual MPs.

True, such a rule gives excessive power to faction leaders and belittles
the role of the deputy as a people’s representative. Yet, the factions’
exclusive role in government coalition formation is consistent with,
and follows from, the electoral system.

In so far as voters are not given a chance to express their opinion on
individual candidates, the elected deputies have to act first and
foremost as faction members. Within proportional electoral systems, it
is not them as individuals, but their factions as fixed political
collectives recruited from prearranged lists that represent the voters
will, in legislature.

In spite of these circumstances, Yanukovych, on March 11, pushed through
a government that is based only partly on party-factional support. The
three factions that form the current coalition do, by themselves, not
have a majority, in the Verkhovna Rada. Yanukovych’s Party of Regions,
Ukraine’s Communist Party, and Parliamentary Speaker Volodymyr Lytvyn’s
Bloc comprise only 219 of the 450 deputies. Yanukovych’s Party (thought
that it has) solved this problem by luring away a number of deputies
from its Orange competitors - the Bloc of Yulia Tymoshenko and
pro-[Viktor] Yushchenko alliance “Our Ukraine – People’s Self-Defense” -
in order to form a government coalition.

This happened in spite of the fact that these two factions represent
exactly those political forces which, during the last parliamentary of
2007, stood in open opposition to Yankovych’s Party of Regions. When
voters decided to cast their votes for the Tymoshenko Bloc and “Our
Ukraine – People’s Self-Defense,” in 2007, they were clearly also voting
against Yanukovych’s Party of Regions.

Nevertheless, on March 11, 12 deputies who had become MPs on the tickets
of the two Orange blocs signed the coalition agreement that laid the
ground for subsequent transfer of almost all executive prerogatives to
the Party of Regions. The formerly Orange deputies did so against the
expressive will of their initial factions and in manifest disregard of
their voters’ mandate.

Party transfers during legislative period, to be sure, are not unusual,
in young democracies. They occasionally even happen in consolidated
democracies, like the Federal Republic of Germany which has also a
proportional electoral system (a partly personalized ne though).

However, in mature democracies, such political transgressions usually
concern only isolated MPs who choose to pass from one to another
faction, for personal reasons. Therefore, the German basic law, for
instance, upholds the MP’s unrestricted “freedom of the mandate,” in
spite of the fact that half of the members of the Bundestag are not
elected directly, but collectively, on their respective parties’ tickets
– much like in Ukraine. The idea that a relatively large group of MPs
could be purposefully drawn from one to another party in order to
effectively cancel election results is so absurd that it has received
little attention from constitutional engineers, and political
comparativists, in Western states. Should such consequential change in
the political allegiance of numerous deputies happen, the violation of
the voters’ will would be so flagrant that it appears a waste of time to
seriously consider such a strange and hypothetical case.

In unconsolidated pluralistic states, such things, however, do happen.
Moreover, as the pre-history of the Orange Revolution showed, Yanukovych
and Company are no democrats. Their poorly disguised falsification of
the first two rounds of the 2004 presidential elections, as well as
numerous related actions, demonstrated the Party of Regions’ ambivalent
relationship to democratic norms. Moreover, Ukraine is not yet a
consolidated democracy with a deeply ingrained rule of law. It is a
state still in the process of formation, and one of the countries that
has, worldwide, suffered most from the financial crisis. Judicial review
has started to function in post-Soviet Ukraine, as the Constitutional
Court’s intervention during the Orange Revolution showed. Yet, the
results of the Constitutional Court’s today review on the new Ukrainian
government coalition will hardly solve the current conflict between the
political camps, as it did in 2004.

Its latest ruling is a rather strange development in so far as the
Constitutional Court did already rule on the issue of whether individual
MPs may participate in government coalition building. In its decision
of 17 September 2008, the Court ruled that “[…] only those people’s
deputies of Ukraine who are members of the deputies factions that form a
coalition can enter the ranks of that coalition. The membership of the
people’s deputies of Ukraine in these factions underlines the
exceptional role of deputies factions in the formation of a coalition of
deputies factions.”

In view of this ruling, the current government would appear as not only
illegitimate from a democratic point of view, but also as illegal from a
juridical standpoint. However, the new ruling renounces the quoted
earlier one. It, moreover, puts under question all previous rulings by
the Constitutional Court which, presumably, also could be revoked by the
Court after a second hearing.

What also follows is an unsettling of the party-electoral system of
Ukraine. If elections continue to be held in a purely proportional mode,
voters will become unsure what their votes actually imply and will
eventually lead to. As voters can only approve of closed party lists,
they have no opportunity to punish individual deputies who have
renounced the mandate they had received during the previous elections,
i.e. who have, in fact, betrayed their voters. Worse, voters of those
parties or blocs that suffer most from enticement of their deputies by
competing parliamentary factions will ask themselves why they are voting
at all. If the deputies whom they delegate to parliament may later be
poached by the opposing camp, and switch political sides, it makes
little sense to send them to the Verkhovna Rada, in the first place.
Today’s renunciation of the Constitutional Court’s decision of September
2008 makes Yanukovych’s Party of Regions a “double-winner”: it can keep
its hold on the executive with the help of deserters from other
factions while at the same time undermining the electoral base of its
political competitors. Democratic elections’ primary function of
constituting a transparent link and effective feedback mechanism between
the population and government has been diminished.

Ukraine’s decision makers have to understand that only semi-formal
observance of democratic rules and merely rhetorical acceptance of
political pluralism will be insufficient to keep the country on track to
eventual European Union membership – an aim to which all relevant
political actors seem committed. Oral agreement to certain actions even
by official Western delegations will not be enough to ensure
sustainability in Ukraine’s move towards Europe, for the next years.

It is possible that the government formation of March 11 will lead to a
downgrading of Ukraine in future democracy rankings, like those of
Freedom House. Should Ukraine, for instance, be relegated by Freedom
House from “free” to “partly free,” this could have grave political
repercussions for Ukraine. The Western public would again start to see
Ukraine as a country “in between” democracy and authoritarianism, and
not as a state firmly committed to European values. Ukraine would slide
into the category of countries like Moldova, Georgia or Armenia –
semi-democracies that the EU hopes to include some day, but regards
today far from ripe to be offered a membership perspective. It is not
some selected ambassadors or EU officials, but the people of Europe –
including the Ukrainians themselves! – who the new political leadership
of Ukraine will have to convince of its commitment to democracy and the
rule of law.

Friday, April 09, 2010

The ruling of Ukraine's Constitutional Court on the question of the formation of the new Government has a major implication over Ukraine. It effectively removes Ukraine's Imperative mandate provisions. The ruling is at odds with Courts previous ruling and the wording of Ukraine's Constitution itself.

It most certainly will need to be reviewed by the European Venice Commission as it also has implications on their reports. Whilst the ruling has some standing in relation to decisions of the parliament it appears to ignore the fact that there is a limitation on the question of the formation of the governing coalition. It also means that the parliament can by regulation or basic law modify the intent of the Constitution itself.

Article 83 (Paragraph 6) of Ukraine's Constitution states

According to election results and on the basis of a common ground achieved between various political positions, a coalition of parliamentary factions shall be formed in the Verkhovna Rada of Ukraine to include a majority of People’s Deputies of Ukraine within the constitutional composition of the Verkhovna Rada of Ukraine.

The key question is the definition of "parliamentary factions".

Paragraph 9 states

Framework for forming, organising, and terminating activities of a coalition of parliamentary factions in the Verkhovna Rada of Ukraine shall be established by the Constitution of Ukraine and the Rules of Procedure of the Verkhovna Rada of Ukraine.

It is this clause that gives power and authority to the Parliament to establish laws and regulations pertaining to the formation of the government.

In most western democracies a minority government is possible provided they can maintain the support and confidence of a majority of the Parliamentary representatives. There is no question that the current government has the support of a majority of members of parliament, but its only has this support as a result of members of of parliament that have acted as individuals outside the determination of the faction that elected them.

Article 81 of Ukraine's Constitution (Which only recovered a cursory mention in the Constitutional Courts latest ruling) limits a members of parliaments mandate and authority in that they must remain members of the the faction that elected them to office.

There are five factions that secured representation in Ukraine. (Party of Regions, Bloc Tymoshenko, Our Ukraine-Peoples' Self Defence, the Communist Party of Ukraine and Bloc Lytvyn).

Only Party of Regions, The Communist Party and Bloc Lytvyn have formally resolved to join the coalition. Together they do not represent a majority of the parliament. It is only with the support of breakaways MP's that the current government can maintain a majority of the Parliament.

Article 83 requires that the formation of the governing coalition be made by factions that combined represent a majority of of the 450 member parliament. The ruling of the Constitutional Court, which is final and can not be appealed, have ignored this provision and given it a much broader application then previously considered to exist.

In 2007 Viktor Yushchenko dismissed Ukraine's previous Parliament, in doing so he claimed that the support of the governing coalition was in breach of Ukraine's Imperative Mandate provisions. Yushchenko acted to prevent the parliament from securing support to implement proposed amendments to Ukraine's Constitution which require the support of 300 embers of parliament. The previous Parliamentary government headed by Ukraine's (now President), Viktor Yanukovych, was formed with the support of three factions (Party of Regions, The Socialist Party and the Communist Party of Ukraine) which in turn reperesented a majority of the Parliament.

Decisions of the parliament are determined by an absolute majority of the parliament (226 out of 450). Certain decision such as amendments to Ukraine's constitution require the support of a Constitutional majority of the parliament. Decisions are not restricted to factions, a member of parliament can act independently in supporting any legislative initiative including Constitutional reform, legislation or votes of confidence in the governing coalition.

The latest ruling of the Constitutional Court has confirmed this fact, which brings Yushchenko's actions back in 2007 into question. The problem is the ruling of the latest ruling of the Constitutional Court has gone beyond establishing the rights of MPs to caste their vote as individuals., It has nullified the provision that the formation of the governing coalition is to be made by parliamentary factions, something that all players including the Venice Commission had previous thought was required. This has significantly changed the dynamics of party politics in Ukraine.

The provisions of Article 81 of Ukraine's Constitution has not been addresses and in theory Our Ukraine-Peoples Self defense and Bloc Yulia Tymoshenko can seek in enforce party/faction discipline by expelling those rebel members of Parliament who have acted outside the faction. A process which would be very destructive and paved with numerous obstacles not the least further court challenges.

The opposition factions could try and force fresh elections by resigning their mandate and cancelling their electoral lists. Article 82 second paragraph states

The Verkhovna Rada of Ukraine is competent on the condition that no less than two-thirds of its constitutional composition has been elected

It was on this basis that agreement was finally reached to allow the early 2007 Parliamentary election to take place although it was never tested in courts. There is no guarantee that mass resignation and cancellation of a party list would force parliamentary elections to be held, or that fresh elections would deliver a change in outcome.

The opposition is losing ground, Yulia Tymoshenko has claimed that the decision of the Constitutional Court is tainted by allegations of bribery and corruption. Whilst the decision of the Court gives some conjecture to this allegation, Tymoshenko has to date not provided and solid evidence that this is the in fact true. She needs to substantiate her allegations beyond conjecture.

One possible option is for the decision of the Court to be reviewed by the European Venice Commission to determine if it complies with International standards of law The Venice Commission is the most qualified body to undertake a review even though it has no
legislative enforcement. Its report would go a long way towards raising the overall acceptance of
the Courts decision. However the Commission will be reluctant to be seen to undermine the sovereignty and Constitutional authority of a member state.

Had the Venice Commission reflected on the Constitutionality of Yushchenko's decision back in 2007 Ukraine may not have been in the current situation it now finds itself. This is one issue that the Venice Commission can not ignore as they will have to reflect on it at some stage,in the future, better sooner then later.

What is clear is that this latest ruling by Ukraine's Constitutional Court will be widely debated and will most likely be considered as part of any for proposed Constitutional reform

Wednesday, April 07, 2010

In what is seen as a major controversy Ukraine's Constitutional Court is to rule 11 out of 18 in favour of the formation of Ukraine''s new governing Coalition. A decision that will spark much debate and is a mixed blessing for both the government and Ukraine's Former president Viktor Yushchenko, bringing into question Ukraine's imperative mandate provision and previous ruling of the Constitutional Court. (See Articles 81, 83 of Ukraine's Constitution). Details of the ruling are still sketchy. The ruling legitimises the new government and prevents the need for early Parliamentary elections.

Meanwhile the public prosecutions of Ukraine are seeking details from former Presidential candidate and Opposition leader Yulia Tymoshenko in relation to her claim that members of the Constitutional Court were summoned to the President's office and offered bribes and threats to support the formation of the new government. Tymoshenko's allegations are serious and the onus is now on her to substantiate her claim and provide hard evidence in support of them. If she can do so she should receive the backing of the International community.

KIEV, April 7 (Itar-Tass) -- Ukraine’s
Constitutional Court has confirmed the
formation of the parliamentary coalition was legitimate. Individual
deputies may
take part in the formation of the parliamentary majority, the court
said.

The constitutional court has confirmed that “every
single deputy may join a
parliamentary coalition, no matter what faction he or she represents,”
the UNIAN
agency quoted the court decision on Wednesday.

This decision was supported by 11 of the 18 judges.

The Constitutional Court will announce its decision
officially on Thursday,
the court’s press service said.

In early March Ukraine’s Verkhovna Rada /parliament/
changed its regulations
and enabled individual deputies, in addition to factions, to form
coalitions.
This decision gave birth to the Stability and Reforms Coalition which
united the
Party of Regions, the Communist Party, the Vladimir Litvin Bloc and
several
deputies from other factions. Presently, the coalition has grown from
235 to 240
deputies.

As the coalition was formed, the Constitutional
Court got two inquiries from
a group of the Party of Regions deputies and from the Yulia Tymoshenko
Bloc. The
deputies asked the court to check whether the formation of a new
coalition was
“legal.”

News in review

Parliamentary Assembly Council of Europe (PACE) Explanatory Report calls on Ukraine to adopt a Full Parliamentary System in line with other European States

"It would be better for the country to switch to a full parliamentary system with proper checks and balances and guarantees of parliamentary opposition and competition."

Constitutional Court challenge

The authority of the President to dismiss Ukraine's parliament has been challenged in Ukraine's Constitutional Court amidst concern that the President's actions are unconstitutional in that he has exceeded his authority to dismiss Ukraine's parliament.

On April 19 the Parliamentary Assembly of the Council of Europe passed a resolution in consideration of a report titled Functioning of democratic institutions in Ukraine. (Items 13 and 14) stated:

“ The Assembly deplores the fact that the judicial system of Ukraine has been systematically misused by other branches of power and that top officials do not execute the courts’ decisions, which is a sign of erosion of this crucial democratic institution. An independent and impartial judiciary is a precondition for the existence of a democratic society governed by the rule of law. Hence the urgent necessity to carry out comprehensive judicial reform, including through amendments to the constitution.

The Assembly reiterates that the authority of the sole body responsible for constitutional justice – the Constitutional Court of Ukraine – should be guaranteed and respected. Any form of pressure on the judges is intolerable and should be investigated and criminally prosecuted. On the other hand, it is regrettable that in the eight months of its new full composition, the Constitutional Court has failed to produce judgments, thus failing to fulfil its constitutional role and to contribute to resolving the crisis in its earlier stages, which undermines the credibility of the court.

There is an urgent need for all pending judgments, and in particular the judgment concerning the constitutionality of the Presidential Decree of 2 April 2007, to be delivered. If delivered, the latter should be accepted as binding by all sides.
”

The associated explanatory report under the sub-heading of Pressure on the courts expressed concern that "Several local courts have made decisions to suspend the Presidential Decree only to then withdraw them, allegedly under pressure from the presidential secretariat." (item 67)

In emphasis the report (item 68) stated

"This is a worrying tendency of legal nihilism that should not be tolerated. It is as clear as day that in a state governed by the rule of law judicial mistakes should be corrected through appeal procedures and not through threats or disciplinary sanctions ”

On April 30, on the eve of the Constitutional Court's ruling on the legality of the president's decree dismissing Ukraine's parliament, President Yushchenko, in defiance of the PACE resolution of April 19 intervened in the operation of Ukraine's Constitutional Court by summarily dismissing two Constitutional Court Judges, Syuzanna Stanik and Valeriy Pshenychnyy, for allegations of "oath treason." His move was later overturned by the Constitutional Court and the judges were returned by a temporary restraining order issued by the court.

Following the president's intervention the Constitutional Court still has not ruled on the question of legality of the president's actions.

Stepan Havrsh, the President's appointee to the Constitutional Court, in prejudgment of the courts decision and without authorization from the Court itself, commented in an interview published on July 24

“ I cannot imagine myself as the Constitutional Court in condition in which three political leaders signed a political/legal agreement on holding early elections, which also stipulates the constitutional basis for holding the elections... How the court can agree to consider such a petition under such conditions.”

Olexander Lavrynovych, Ukrainian Minister for Justice, in an interview published on Aug 3 is quoted as saying

“ According to the standards of the Constitution and the laws of Ukraine, these elections should have been recognized invalid already today. But we understand that we speak about the State and about what will happen further in this country. As we've understood, political agreements substitute for the law, ... The situation has been led to the limit, where there are no possibilities to follow all legal norms.